Story and Photos by: Monika Janczuk

It is 5 a.m. on a Monday morning. About 130 miles away from Milwaukee, Wisconsin, in a small countryside town full of green and open pastures and only 300 residents, Vernon Hershberger is waking up his children so they can help dad get the daily tasks at the farm finished. His wife, Erma, is busy preparing breakfast for the nine children. Other members of the farm help throughout the day.

At the Hershberger’s Grazin’ Acres Family Farm, the cows do not eat any grains and are not administered any sort of antibiotics or bovine growth hormones (rBST). Everything is natural, just like it has been for generations. Hershberger says that his family had an organic farm before the term organic became popular and trendy.

South of the red and white barn in a quaint grey home, things come to life by 5:30 a.m. In order to get everything done, he makes sure that he is out visiting the cows with his helpers just as the sun makes its first appearance of the day.

However, starting in 2009, trouble arrived at the farm after the Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) visited numerous times. Hershberger is now being charged with operating a retail food establishment without a license, operating a dairy farm as a milk producer without a license, operating a dairy plant without a license and violating a DATCP holding order. The State Attorney General’s office is prosecuting Hershberger for selling raw milk, even though he does not sell to the public.

In an article published in 2011 titled “Raw Milk Misconceptions and the Danger of Raw Milk Consumption,”the FDA claims that raw milk “cancontain a variety of disease-causing pathogens” and that “pasteurization effectively kills raw milk pathogens without any significant impact on milk nutritional quality.” They even claim that bacteria found in raw milk are not probiotic. However, the Raw Milk Policy Working Group, put together by DATCP, in March of 2011 admits that “raw cow’s milk is rich in nutrients, high quality protein, essential vitamins, minerals, and calcium” and that most bacteria in raw milk are harmless. Additionally, they state that the “importance of…dairy products in the human culture in undeniable.” According to the Executive Summary in the report put together by the Group, DATCP appointed the 22-member group representing the Wisconsin dairy industry to “explore and evaluate the legal and regulatory alternatives that would be necessary to protect public health if dairy farmers are to be allowed to sell raw milk on their farms in Wisconsin.”

Hershberger’s three day jury trial is set to start September 25th of this year. Hershberger asked the court to move the trial to an earlier date, but his request was denied. If Grazin’ Acres does not have a dairy license from the state, is it subject to their penalties? According to Hershberger and raw milk advocates, it is not, and the state is violating his 1st, 4th, 9th, and tenth Amendment rights under the U.S. Constitution. Does the state have a right to tell you what to eat? Since the farm is co-owned by members and no food is distributed to the public, did Hershberger violate any state laws? According to Hershberger, other raw milk dairy farmers, the Raw Milk Association, and many raw milk advocates, it is about food-control and forcing their regulations on farmers who do not have a license from the state and/or sell raw milk, which hurts corporate-owned operations since the demand for raw milk is rising. “Dairy consists of half of my family’s diet,”Hershberger says in an interview. “With nine kids that drink two glasses each at three meals a day… we drink over a gallon a half per meal.” It’s highly unlikely he would feed his ten children and then pregnant wife unsafe foods, let alone distribute them it to the members of the farm.

Over the last few decades, there has been an increase in government oversight due to restrictions getting tighter and the state demanding permits from small dairy farmers who voluntarily gave up their state dairy permit.Journalist John Moody says that the FDA under President Obama’s administration had “the audacity to state that people have no inherent right to choose the food they eat or what they feed their children” in an articleon the Farm-to-Consumer Legal Defense Fund website.

Michael Grimm, a Milwaukee resident, says he brings home raw milk to his family because “it is the only practical way to keep my family healthy.” “I don’t fight for the right to drink raw milk,” he said. “It doesn’t matter if we have the right or not as long as no one is stopping us.”During his initial hearing earlier this January, Hershbergertold Sauk County Judge James Evenson that he has done nothing wrong since he has provided raw milk to members of the Grazin’ Acres buying club. Since the members own the food, Hershberger argues that DATCP does not have the jurisdiction to inspect his farm let alone tell the members that they cannot eat items from the pantry by taping up the refrigerators with a holding order.In a Sept. 9, 2011 decision, former Dane County Circuit Court for Branch 8 Judge Dane County Judge Patrick J. Fiedler told members of the Zinniker Farm in Elkhorn that they “do not have a fundamental right to own and use a dairy cow or a dairy herd.” Fiedler also added that the plaintiffs “do not have the fundamental right to consume the milk from their own cow.”The Zinniker Farm in Elkhorn was shut down for having a cow-share program that distributed raw milk since the mid-1980s. Cow-share programs allow families to purchase a share in a cow herd which in turns allows them to get raw milk from those cows. Fiedler, in his decision and order, Fiedler said “the court found that the government has a legitimate interest in regulating the sale and/or distribution and consumption of unpasteurized milk through Wis. Stat. 92.24(2).”The government’s legitimate…or financial interest?

“The dairy industry is the centerpiece of Wisconsin agriculture…an outbreak of disease from consumption of unpasteurized [or raw] milk could damage the state’s reputation,” said former Gov. Jim Doyle in May of 2010 after vetoing SB 434, which would have allowed raw milk sales within the state. Even though the bill passed both houses in March of 2010 and Doyle initially supported the initiative, he ended up vetoing the bill due to “much of the controversy surrounding” the safety of raw milk.According to the Farm-to-Consumer Legal Defense Fund website, who has brought a suit against the DATCP on behalf of Mark and Petra Zinniker and the members of Nourished by Nature LLC, the Zinniker case “raises several constitutional issues, including freedom of association and the right to privacy…”Exemptions Wisconsin statute 92.20 (2)(e), License exemptions states:

“A dairy plant license under this section is not required for: 1. A farm manufacturing or processing dairy products solely for consumption by the owner or operator of the farm, or members of the household or nonpaying guests or employees.”In his jurisdiction challenge, Hershberger said that the farm and its owners and governors are “also exempt from Dairy Plant License under Wis. Stat. sec. 97.20 (e)1., because said farmstead is privately owned and operated through voluntary monetary contributions from its members for the sole purpose of maintenance of the farm and production of farm goods.” In essence, as owners of the farm through a contract, the co-owners are privately organized.

Hershberger goes on to say that he did not want to be subject to standard “toxic health-department regulations” since the “DATCP regulations inflict contamination to our foods.” Members of Gazin’ Acres put a lot of effort and work into making sure everything is pesticide and disease free, he says. Once a farm obtains a state dairy license, they are subject to numerous fines and fees, including “not more than $5,000 or imprisoned not more than one year in the county jail or both” for obstructing a department inspector, employee or agent “in the performance of her duties.”

“Your honor, I have spent many sleepless hours since singing the bond due to my conscience being plagued by the thought of shutting up my bowels of compassion to my Brethren who are dependent on the food that is provided by and for them on our farm,” began Hershberger during an appearance before a Sauk County judge. “I cannot in good conscience tell the 100+ families who own the food and depend on it to feed their families that they can no longer get food to feed their families.” Attorney and President of the Farm-to-Consumer Legal Defense Fund Pete Kennedy said that it is unusual for the county District Attorney and the state Attorney General to prosecute a case together in an article titled “The Hershberger Trial and Jury Nullification.”

Raw Milk SalesIn the top five milk-producing states, four of them allow either retail or on-farm sales of raw milk, or both. California, ranked first, producing 39,512 million pounds of milk in 2009 and allowing both retail and on-farm sales. In second place, with 25,239 million pounds, is Wisconsin, and it is illegal to purchase raw milk.Under Wisconsin law, it is illegal to buy raw milk from retailers; when one enters the grocery store, whether it is Pick n’ Save or Whole Foods, only pasteurized and homogenized milk is available. Organic milk is usually ultra-pasteurized.

Beginning in 2006, states have seen an increase in crackdowns on raw milk sales; farmers from California and Michigan were being busted for illegally selling raw milk, according to the state’s laws.According to the Farm to Consumer Legal Defense Fund, as of May 17, 2010, only 13 states prohibit the sale of raw milk.10 states allow retail sales of raw milk,15 allow farm sales,3find herd shares to be legal by statute, regulation, or court decision, 5 have no laws on herd shares despite knowing they currently exist4 allow it only as pet foodAs the dairy state, one would think that we would have the largest selection of dairy. Instead, we face prohibition.

Benefits of Raw MilkAdvocates and consumers of raw milk have expressed the medical benefits of consuming unpasteurized milk. According to author of “The Raw Milk Revolution”David E. Gumpert, unpasteurized milk has good bacteria enzymes needed for health and immune systems because of the probiotic supplements available that provide “good” bacteria. The “Report of the Raw Milk Policy Working Group”released by DATCP in March of last year, states:“Many different kinds of bacteria may be found in raw milk. Some bacteria have no effect on food or humans. Most bacteria in raw milk are harmless. Some bacteria in raw milk are beneficial in helping produce food products enjoyed by many people such as cheese and yogurt.”Aren’t bacteria everywhere? Can’t beneficial and harmful bacteria be found in many of the foods that we eat?“What consumers need to realize, first of all, is that the incidence of foodborne illnesses from dairy products, whether pasteurized or not, is extremely low,” said Sally Fallon Morell, the president of Weston A. Price Foundation. She continues to say that there are almost 24,000 foodborne illnesses reported on average each year.Research has shown that certified milk treatments used at one time were used to cure various diseases by building up body resistance since it resembles blood closely and is a useful agent of metabolism.In “Real Milk Cures any Diseases,” J.R. Crewe, MD said that this treatment was used in “many chronic conditions but chiefly in tuberculosis, diseases of the nervous system, cardiovascular and renal conditions, hypertension, and in patients who are underweight.”

Gumpert points to a book first published in 1905 titled “Milk Diet: As a Remedy for Chronic Disease” that recommends raw milk to cure thinks like asthma and high blood pressure. In context, says Gumpert, when milk is pasteurized, it is heated to 161 degrees Fahrenheit for 15 to 20 seconds to kill pathogens. Louise Pasteur came up with the pasteurization process for the wine industry in France. It was later applied to food to prevent food-borne illness outbreak. However, those illnesses no longer affect our population.

Up until the early 1900s, before pasteurization, only raw milk was available. However, the US Centers for Disease Control (CDC) said that 25 percent of all of the food-borne illnesses as late as the 1930s were caused by raw milk.

“Think about it,” said Hershberger, “you’re warming up the milk to kill the bacteria….and then you’re drinking [the bacteria]?”He said that his milk is warmed up to 102 degrees Fahrenheit because above 105 degrees, you “ruin the milk.”Throughout the late 1800s and early 1900s, cities were infected with diseases. Sewerage systems and sanitation did not exist; our cities were filthy and crowded farms full of livestock were subject to disease.However, the raw milk farmers of today do not have these conditions.The 35 cows grazing on the farm eat grass, not grains. After a few hours visiting to the farm, it was evident that Hershberger kept his farm, the milking areas, and pantry clean. “By demonizing, criminalizing, and marginalizing the integrity of the food movement, the entrenched powers that be hope to derail this revolution,” said Gumpert, author of “The Raw Milk Revolution.”